BNUMBER:  B-279543 
DATE:  June 23, 1998
TITLE: Hard Bodies, Inc., B-279543, June 23, 1998
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Matter of:Hard Bodies, Inc.

File:     B-279543

Date:June 23, 1998

Sherry K. Morton for the protester.
Marleen J. Phillips, Esq., and Kathy B. Cowley, Esq., Department of 
the Navy, for the agency.
Paul Jordan, Esq., and Paul Lieberman, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Evaluation of offeror's past performance was reasonable where it was 
performed in accordance with stated evaluation criteria and reflected 
valid assessment of offeror's experience. 

DECISION

Hard Bodies, Inc. (HBI) protests the award of a contract to FMF 
Corporation under request for proposals (RFP) No. N00600-97-R-2454, 
issued by the Department of the Navy as a total small business 
set-aside for operation of a fitness/wellness center at the Office of 
Naval Intelligence in Washington, D.C.  HBI challenges the RFP 
evaluation criteria and their application by the agency. 

We deny the protest.

This procurement is for the management and operation of a 
fitness/wellness center for approximately 1,250 military and civilian 
Naval personnel.  The successful offeror will be responsible for 
staffing the center; facilitating participation through a 
predetermined application process; planning, organizing, and 
coordinating wellness/intervention programs and activities; and 
evaluating program activities and submitting regular reports.  The RFP 
contemplated the award of a fixed-price contract for a base year with 
4 option years.  

The original RFP provided for award to the offeror submitting the 
lowest-priced, technically acceptable proposal.  Prior to the closing 
date, the agency amended the RFP (amendment No. 0001) to change the 
basis of award and the evaluation criteria.  As amended, section M.5 
of the RFP provided for the evaluation of past performance to 
"evaluate the relative capability of the offeror" to meet the RFP 
requirements.  While the RFP called for evaluation and consideration 
of the past performance of significant or critical subcontractors, the 
RFP specifically provided that past performance of "key personnel," if 
any, shall not be considered.  Past performance was rated on the basis 
of anticipated risk in delivery of a quality product, on time, without 
degradation of performance.  An "outstanding" rating represented "no 
risk"; a "better" rating represented "very little risk"; a 
"satisfactory" rating represented "some potential risk"; and a 
"marginal" rating represented "significant potential risk."  A 
"neutral" rating was assigned to offerors which had no relevant past 
performance available for evaluation.  

Amended section M.2 provided for award to the offeror whose 
technically acceptable proposal was determined most advantageous to 
the government based on price and past performance.  This section also 
provided that "only proposals that are determined to be technically 
acceptable will be considered for award" and "[t]he evaluation will 
consider past performance as more important as technical approach."  
(Emphasis added.)  After receipt of proposals, the agency again 
amended the RFP (amendment No. 0003) to change the foregoing section 
M.2 sentence to read:  "The evaluation will consider past performance 
as more important than technical approach."  (Emphasis added.)  

Four offerors including HBI and FMF submitted initial proposals by the 
October 14 closing date.  The agency completed initial evaluations by 
February 6, 1998.  At that time, both FMF's and HBI's proposals were 
rated as "unacceptable" but capable of being made acceptable through 
modification.  While FMF's past performance was rated as outstanding, 
HBI's proposal received no rating in this regard because HBI had 
submitted insufficient information.  Both proposals were included in 
the competitive range, and the agency conducted discussions on 
February 11.  Both offerors submitted revised proposals on February 20 
and best and final offers (BAFO) on February 27.  

In the final evaluation, both FMF's and HBI's proposals were rated 
technically acceptable.  However, FMF's proposal was rated 
"outstanding" for past performance, while HBI's proposal was rated 
"acceptable."[1]  FMF's proposal was priced at $306,413.28 while HBI's 
was priced at $266,820.  In making her award determination, the 
contracting officer observed that FMF's proposed price, though higher 
than HBI's price, was lower than the government estimate, and 
recognizing that both proposals were rated technically acceptable, she 
concluded that FMF's past performance rating of "outstanding," two 
levels higher than HBI's rating, justified payment of the higher price 
proposed by FMF.   

After receiving notice of the award and a debriefing, HBI filed this 
protest.  The agency has issued a stop work order to FMF pending the 
outcome of the protest.

HBI first protests the terms of amendment No. 0003, arguing that its 
change of the evaluation criteria was designed both to eliminate HBI 
from the competition and to skew the evaluation to favor a 
predetermined offeror.  Specifically, HBI contends that under the 
original award basis (low priced, technically acceptable offer), its 
proposal would have been selected for award.  This protest ground is 
untimely.  In procurements where proposals are requested, alleged 
improprieties which do not exist in the initial solicitation but which 
are subsequently incorporated into the solicitation must be protested 
not later than the next closing time for receipt of proposals 
following the incorporation.  Bid Protest Regulations, 4 C.F.R.  sec.  
21.2(a)(1) (1998).  Here, the real change in the award basis and 
evaluation criteria was made in amendment No. 0001, issued prior to 
the original closing date of October 14, 1997.  Thus, HBI's protest of 
March 17, 1998 is untimely and not for consideration.[2]

HBI next argues that the agency misevaluated HBI's past performance.  
In HBI's view, had the agency done a proper past performance 
evaluation, HBI would have been awarded the contract on the basis of 
its lower price.[3]  

It is not the function of our Office to evaluate proposals de novo.  
Rather, since determining the relative merit of competing proposals is 
primarily a matter within the contracting agency's discretion, we will 
examine an agency's evaluation only to ensure that it was reasonable 
and consistent with the stated evaluation criteria and applicable 
statutes and regulations.  Advanced Tech. and Research Corp., 
B-257451.2, Dec. 9, 1994, 94-2 CPD  para.  230 at 3; Information Sys. & 
Networks Corp., B-237687, Feb. 22, 1990, 90-1 CPD  para.  203 at 3.  The 
protester's mere disagreement with the agency's judgment does not 
establish that an evaluation was unreasonable.  Medland Controls, 
Inc., B-255204, B-255204.3, Feb. 17, 1994, 94-1 CPD  para.  260 at 3.  From 
our review of the record, the agency's evaluation here was reasonable.

HBI argues that since it received "outstanding" ratings on its past 
performance reference questionnaires, the agency was required to rate 
HBI's overall past performance as outstanding.  Section L.9 of the 
RFP, as amended, required offerors to submit past performance 
information on "directly related or similar" contracts and 
subcontracts, including those "which are of similar scope, magnitude 
and complexity to that which is detailed in the RFP." (Emphasis 
omitted.)  The agency explains that it rated HBI's past performance as 
"acceptable" because HBI's past performance information did not 
indicate that HBI had experience in actually operating and managing a 
fitness facility of the size and scope contemplated here.  In this 
regard, HBI's proposal listed 10 relevant contracts, 8 of which were 
with the federal government, and all of which encompassed only the 
teaching of various aerobics and fitness classes.  HBI did not claim 
to have management experience; on the contrary, HBI observed that "as 
a company [it had] never serviced a fitness center contract."  HBI 
relied on its proposed fitness director as providing for such 
experience.  Along with the description of past contracts, HBI also 
submitted five past performance questionnaires, three of which rated 
HBI's overall performance as "outstanding," and two of which rated it 
as "neutral."  Since all five of these contracts were for aerobics and 
toning classes for 15 to 30 persons per class under contracts much 
smaller than that protested, the agency reasonably concluded that the 
"outstanding" and "neutral" ratings on those contracts warranted only 
an overall "acceptable" rating.  HBI's mere disagreement with the 
agency's evaluation does not establish that the evaluation was 
unreasonable.  Medland Controls, Inc., supra.

While HBI argues that its proposed fitness director's more than 20 
years of experience should have been considered as part of the past 
performance evaluation, the amended RFP made clear that key personnel 
experience would not be considered as part of this evaluation.  
Instead, key personnel were evaluated under the technical evaluation.  
Although our Office has recognized that an agency properly may 
consider the experience of supervisory personnel in evaluating the 
experience of a new business, see Technical Resources, Inc., B-253506, 
Sept. 16, 1993, 93-2 CPD  para.  176 at 5, an agency is not required to 
attribute such personnel experience to the contractor as an entity.  
Atlantic Coast Contracting, Inc., B-270491, B-270590, Mar. 13, 1996, 
96-1 CPD  para.  147 at 3.[4]

Finally, HBI claims that the contracting officer was biased against 
it.  This bias allegedly arose from a "verbal altercation" HBI had 
with the contracting officer in January 1998.  According to HBI, it 
was inquiring about the status of the procurement and the contracting 
officer allegedly was "irate" and "very disrespectful and 
unprofessional" because she felt that HBI's "frequent calling . . . 
was an inconvenience."  The contracting officer denies any bias 
against HBI.  

Government officials are presumed to act in good faith; we will not 
attribute unfair or prejudicial motives to procurement officials on 
the basis of inference or supposition.  Triton Marine Constr. Corp., 
B-250856, Feb. 23, 1993, 93-1 CPD  para.  171 at 6.  In addition to 
producing credible evidence showing bias, the protester must 
demonstrate that the agency bias translated into action that unfairly 
affected the protester's competitive position.  Id.  Here, even 
assuming the contracting officer was "irate" in response to "frequent" 
phone calls from a prospective offeror, this alone does not support an 
allegation of bias; HBI merely infers bias based on the evaluation and 
the award determination.  We will not attribute bias in the evaluation 
of proposals on the basis of inference or supposition.  TLC Sys., 
B-243220, July 9, 1991, 91-2 CPD  para.  37 at 4.  Moreover, since the 
record establishes the propriety of the agency's evaluation of HBI's 
proposal, there is no basis to question the motives of the contracting 
officer. 

The protest is denied.

Comptroller General
of the United States

1. HBI notes that the word "acceptable" was not listed among the 
ratings specifically set forth under the RFP evaluation criteria.  The 
agency explains, and the record clearly shows, that even though the 
evaluators used a technically incorrect word, their evaluation of 
HBI's past performance was entirely consistent with the RFP definition 
of "satisfactory."  Accordingly, HBI was not prejudiced by the 
agency's failure to use the denominated term. 

2. HBI argues that its protest did not arise until February 11 when it 
received amendment No. 0003 which made the one-word change of the 
phrase "important as" to "important than."  Even if this minor 
clarification were viewed as substantive, HBI did not protest it until 
after the next closing date for receipt of proposals.  Since HBI 
submitted proposal revisions and a BAFO without complaint, HBI's 
protest of the amended solicitation is untimely in any event.

3. HBI's protest also generally questions the propriety of awarding 
this contract at a higher price.  In a negotiated procurement, where, 
as here, the RFP does not make price the determinative factor, the 
government is not required to select the lowest-priced technically 
acceptable proposal.  Nomura Enter., Inc., B-277768, Nov. 19, 1997, 
97-2 CPD  para.  148 at 3-4.

4. When it debriefed HBI, the agency suggested that the protester 
could obtain the necessary experience by adding a subcontractor with 
the requisite management experience.  Based on this advice, HBI 
contends that the agency should have considered its experience as a 
subcontractor to Hummer Associates, the prime contractor on the 
incumbent contract.  HBI listed this contract as part of its past 
performance information.  However, HBI's experience consisted of 
conducting five aerobics classes per week, with payment made on a 
per-class basis.  HBI apparently recognized its limited value since 
this contract was listed as the eighth of 10 references.  To the 
extent HBI is arguing that the agency should have considered Hummer's 
management experience, that consideration would be improper since HBI 
did not propose Hummer to work with it on the new contract.